HomeMy WebLinkAbout2006-013-02/07/2006-AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT WITH THE GROVE METROPOLITAN DISTRICTS NUMBERS 1 THROUGH 3 RESOLUTION NO. 2006-013
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT
WITH THE GROVE METROPOLITAN DISTRICTS NUMBERS I THROUGH 3
FOR THE PROVISION OF WASTEWATER TREATMENT SERVICES
BY THE CITY'S WASTEWATER UTILITY
WHEREAS, Larimer County has recently adopted the 2004 Laporte Area Plan, which
establishes general planning and zoning standards for the unincorporated area of Latimer County
northwest of Fort Collins generally referred to as "Laporte", which is outside of the City limits and
outside of the City s approved Growth Management Area("GMA"); and
WHEREAS,the adoption of the Laporte Area Plan,which identifies areas for possible future
development that will require the provision of public wastewater services,has generated substantial
interest in and discussion of the source of public wastewater collection and treatment services for
that future development; and
WHEREAS, among the alternatives under discussion is the formation of one or more new
special districts to provide wastewater collection and treatment services, most likely through the
development of small package treatment plants; and
WHEREAS, the City of Fort Collins provides water service and wastewater collection and
treatment services to certain properties in the Laporte area as a result of prior agreements with the
Laporte Water and Sanitation District and pursuant to existing individual out-of-city service
agreements; and
WHEREAS, applicable City Plan policies discourage the extension of City utility services
in a manner that may encourage development on the edges of the City's GMA,except when special
benefits will accrue to the City for providing such services; and
WHEREAS,because of Laporte's position upstream of Fort Collins on the Poudre River,the
development of the Laporte area and the treatment in Laporte of wastewater from such development
has raised concerns regarding potential water quality impacts upon the Poudre River, the residents
of Fort Collins and the City's wastewater treatment facilities; and
WHEREAS, on March 1, 2005, the City Council adopted Resolution 2005-018, approving
an Approved Service Area in Laporte so as to allow the City to provide utility services in that area,
and authorizing the City Manager to arrange for and negotiate agreements related to the provision
of wastewater treatment services in the Approved Service Area; and
WHEREAS,several developers planning developments in the Laporte area have formed three
metropolitan districts to provide wastewater services, along with other public improvements and
services, for a planned development known as The Grove; and
WHEREAS,the new districts,named The Grove Metropolitan Districts Numbers 1 through
3 (the "Grove Districts"), have been planned and established with the expectation of acquiring
wastewater treatment services from the City, thus eliminating the water quality impact concerns
noted above; and
WHEREAS, based on the Council's prior policy direction, staff has negotiated an
intergovernmental agreement with the Grove Districts under which the City would provide
wastewater treatment services in exchange for payment of certain fees, rates and other charges by
the Grove Districts, together with other terms, conditions and requirements; and
WHEREAS,Section 7.5-3 of the City Code authorizes the City Manager to collect from new
out-of-GMA utility customers administrative charges based upon the estimated demand on City
services to result from the development to be served by City utility services; and
WHEREAS, the terms and conditions for provision of said wastewater treatment services,
and for payment for fees, rates and other charges by the Districts in exchange for said services are
set forth in the Intergovernmental Agreement for Wastewater Treatment Services,"a copy of which
is attached hereto as Exhibit"A"and incorporated herein by this reference(the"Agreement"); and
WHEREAS,the City is authorized to enter into intergovernmental agreements to provide any
function, service or facility, such as a grant agreement, as provided in Article II, Section 16 of the
Charter of the City of Fort Collins and Section 29-1-203, C.R.S.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the Council hereby approves the Agreement and authorizes the Mayor to execute the
Agreement on behalf of the City, in substantially the form set forth on Exhibit"A", subject to such
modifications, amendments or additions thereto as may be determined by the City Manager, in
consultation with the City Attorney,to be necessary or appropriate to protect the interests of the City.
Passed and adopted at a regular meeting of the Ci o ncil held this 7th da of February,
A.D. 2006.
Mayor
ATTEST:
City Clerk
February 13, 2006
INTERGOVERNMENTAL AGREEMENT FOR
WASTEWATER TREATMENT SERVICES
BETWEEN THE CITY OF FORT COLLINS, COLORADO
AND THE GROVE METROPOLITAN DISTRICTS NOS. 1 THROUGH 3
This AGREEMENT is made this_\�day of Ltj 2006, by
and between THE CITY OF FORT COLLINS WATER UTILIn ENTERPRISE, a
government-owned business within the meaning of Article X Section 20(2)(d), of the
g g
Colorado Constitution, organized pursuant to C.R.S. ' ' 37-45.1-101 et seq., whose
address is 700 Wood Street, Fort Collins, Colorado 80521 (the "Enterprise"), and THE
CITY OF FORT COLLINS, Colorado, a home rule municipality (the "City")
(collectively referred to hereinafter as "Fort Collins") and THE GROVE
METROPOLITAN DISTRICT NO. 1, THE GROVE METROPOLITAN DISTRICT
NO. 2, and THE GROVE METROPOLITAN DISTRICT NO. 3 (collectively referred to
hereinafter as the "Districts"), quasi-municipal corporations and political subdivisions of
the State of Colorado, for wastewater treatment services by Fort Collins. Collectively
Fort Collins and the Districts may be referred to herein as "Parties"or each a"Party".
WHEREAS, pursuant to Article XIV, Section 18 of the Constitution of the State
of Colorado, Article II, Section 16 of the Charter of the City of Fort Collins, and Section
29-1-203(1) and Section 32-1-1001 of the Colorado Revised Statutes, the Parties may
cooperate or contract with one another to provide any function, service or facility
lawfully authorized to each of the cooperating or contracting units of government; and
WHEREAS, Fort Collins is a home rule municipality that operates and maintains
a wastewater treatment system for the benefit of its residents, which system includes
collection and transmission lines and a wastewater treatment plant, along with other
associated and accessory facilities and structures (the "City's Wastewater System"); and
WHEREAS, on March 1, 2005, the City Council of the City of Fort Collins
adopted Resolution 2005-018, which identified a portion of the Laporte area designated
as "Approved Wastewater Service Area" and depicted on Exhibit "A", attached hereto
and incorporated herein by this reference (the "Approved Service Area") to which the
City would be authorized to provide wastewater services through the City's Wastewater
System; and
WHEREAS, Resolution 2005-018 authorized and directed City staff to proceed
with negotiations in an effort to cooperate in the formation of a special district that would
provide wastewater collection and customer service in the Approved Service Area, to
which the City would propose to provide wastewater treatment services by agreement
with said district; and
Page 1 of 12
February 13, 2006
WHEREAS, the Districts were organized as a means of constructing and
providing for public improvements to serve The Grove development (the "Project")
located within the Districts' boundaries (the "Districts' Service Area") as contemplated in
their Consolidated Service Plan ("Service Plan"), and to serve such additional areas in the
Laporte area as may in the future be added to the Districts' service territory; and
WHEREAS, the Service Plan contemplates that the Districts will provide for the
construction and financing of the capital improvements as well as the ownership,
operation and maintenance of sanitary sewer collection system as deemed necessary for
the phased demand of the Project (the"Districts' System"); and
WHEREAS, the Districts' System is intended to flow to a public entity with
h would provide sanitary sewer treatment; such
sanitary sewer treatment facilities that p y >
services being provided by Fort Collins or another public entity that is willing and
capable of providing such service as the requirements of the Project require pursuant to
an agreement upon mutually agreeable terms and conditions; and
WHEREAS, Fort Collins and the Districts have determined that it is in the
interests of their respective taxpayers, residents and property owners to enter into this
Agreement and desire to set for in this Agreement their agreements and understandings
regarding the construction, ownership, operations and maintenance of the Districts'
System and regarding the treatment of wastewater collected by the Districts within the
Districts' Service Area by the City's Wastewater System; and
WHEREAS, accordingly, the parties have negotiated the terms and conditions set
forth in this Intergovernmental Agreement for Wastewater Treatment Services.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, the services to be rendered by the City and the payments to
be made by the Districts to the City as herein set forth, and the satisfactory performance
of all conditions and requirements set forth herein, it is hereby agreed by and between the
parties hereto as follows:
1. Term. This Agreement shall be effective as of the date of signing by all
parties, and shall continue in effect until terminated in accordance with Paragraph 13,
hereinafter, by court order or by operation of law.
2. Services Provided. The City agrees to permit the connection of the
Districts' wastewater collection system to the City's Wastewater System at locations
shown on Exhibit B, which is attached hereto and incorporated herein by this reference,
and at additional connection locations that may in the future be approved by the City as
provided in this Paragraph, consistent with all reasonable requirements and specifications
of the City, and to permit the discharge of wastewater from the Districts' wastewater
collection system (the "District System") into the City's Wastewater System subject to all
applicable requirements of the Code of the City of Fort Collins ("City Code"), including,
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• • February 13, 2006
without limitation, Chapter 26, Article IV (Wastewater), during the term of this
Agreement.
A. Connections to the City's Wastewater System. The Districts shall
submit to the City a complete application for a Wastewater Connection Permit
("Permit") for each connection of the District System to the City's Wastewater
System, and shall have obtained such a Permit prior to connection of and any
discharge from each such connection. Such application shall be processed and
reviewed by the City consistent with its general operating practices and policies,
including, without limitation, the development and imposition of any conditions
and requirements for the proposed discharge, such as numeric and/or narrative
discharge limits, self-monitoring requirements, data reporting, notification
requirements, and such other requirements as the City may, in its reasonable
discretion, determine to be appropriate.
B. Metering. Each point of connection between the District System
and the City's Wastewater System shall be made with a flow measurement and
monitoring station, including a manhole in which said measuring devices shall be
located ("Metering Station") designed by the Districts consistent with the City's
requirements and subject to the City's approval, which shall not be unreasonably
withheld or delayed. Each such Metering Station shall be installed and operate so
as to continuously: 1) measure and record wastewater flows; 2) transmit flow
information to the Districts and the City for monitoring and billing; and 3)
provide for periodic sampling. The City shall have full access to and control of
each such Metering Station upon installation and final inspection and acceptance
by the City, for the purpose of carrying out the City's responsibilities hereunder.
Upon termination of this Agreement, the Metering Station shall remain the
property of the Districts, provided that all such Metering Stations shall be
removed and relocated from any City easement or right-of-way within ten (10)
days of termination, except as otherwise agreed in writing by the parties hereto.
In the event that the Districts do not remove said Metering Stations or otherwise
manage them in accordance with the agreement of the parties, then the Metering
Stations shall become the property of the City. In the event of Metering Station
failure, the quantity and quality of flows from the District System may be
extrapolated from the available data and any related information, including but
not limited to prior observations and measurements or contemporaneous data
regarding flows in the City's Wastewater System. The costs of operation and
maintenance of each of the Metering Stations shall be taken into account in the
Cost of Service analysis to be conducted by the City, as set forth below.
C. Industrial and/or Categorical Discharges. If, in the reasonable
discretion of the City, it is determined that proposed discharges from the District
System into the Wastewater System may cause pass through of pollutants,
interfere with the operation or performance of the Wastewater System, whether
due to the partial or complete obstruction of flow in that System, or any other
cause, the Districts shall make such modifications and impose such controls and
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• February 13, 2006
improvements to the District System as the City may reasonably require in order
to allow for the issuance of the permit required for said discharge. The Districts
will not permit the connection of any customer that requires an Industrial
Discharge Permit, unless and until an Industrial Discharge Permit for said
discharge has been requested by the discharging customer and approved by the
City and all permit fees and other associated charges have been paid in full. In
the event that any such categorical discharge results in increased costs to the City,
the City shall be entitled to increase the fees and charges to be paid pursuant to
this Agreement commensurate with said increased costs.
3. Payment for Services. In exchange for the use of the Wastewater System
as provided herein, the Districts shall pay to the City each of the fees and charges set
forth in this Agreement. The fees and charges for wastewater services set forth herein
shall be as established by the City from time to time based upon an analysis of the cost to
the City of providing services hereunder, including but not limited to administrative and
other indirect costs related thereto. The initial rates and charges shall be determined by
an initial cost of service study. The City may update and revise as necessary said cost of
service study, but shall in any event update and revise the same no less frequently than
one (1) time every five (5) years. The Districts may request that the City conduct
additional cost of service studies and analyses, but said additional studies and analyses
shall be at the Districts' sole cost and expense. As applied in this Agreement, the term
"Cost of Service Data" is intended to mean the most recently completed cost of service
study hereunder. The initial Cost of Service Data shall be based upon estimated
wastewater flow rates provided by the Districts and wastewater strength consistent with
normal domestic strength wastewater as defined in City Code.
A. The City shall determine in connection with its approval of each
Permit a Plant Investment Fee based on Cost of Service Data. Said Plant
Investment Fee amount shall be calculated by the City at the time of connection
and paid at the time of issuance of each Permit based upon an analysis by the City
of the characteristics and requested peak day flow rate of the District System
discharges and other associated considerations, and the Cost of Service Data. The
Plant Investment Fee for the connections identified in Exhibit B shall be as set
forth in Exhibit C, attached hereto and incorporated herein by this reference, until
such time as the City updates its Cost of Service Data or modifications in
wastewater flows result in increases as otherwise described herein. In the event
that the Districts determine that wastewater discharges from the District System
may exceed the peak day flow rate for which a Plant Investment Fee has been
paid, or either the City or the Districts determine that the characteristics of said
discharges have materially changed or are expected to materially change, and as a
result additional Plant Investment Fee charges are applicable, the District shall
pay such additional Plant Investment Fee as applicable. Upon a determination by
the City that the discharges from the District System have reached ninety-five
percent (95%) of the peak day flow rate for which Plant Investment Fee has been
paid by the Districts, the Districts shall at that time be prohibited from permitting
any additional connections to the District System until such time as the Districts
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• • February 13, 2006
have paid additional Plant Investment Fees sufficient for increased wastewater
flows based upon the most accurate and currently available projections for the
demand created by the District System.
B. A Monthly Service Charge for the discharges shall be determined
based upon the Cost of Service Data, consistent with the rate applicable to the
category H rate set forth in Section 26-280 of the City Code. The initial Monthly
Service Charge shall be as set forth in Exhibit C, until such time as the City
updates its Cost of Service Data or modifications in wastewater flows result in
increases as otherwise described herein.
C. In the event the peak day flow rate of discharges from the District
System exceeds the flow rate for which Plant Investment Fees have been paid, a
System Lease Charge shall be applicable to said excess flows. This System
Lease Charge shall be shall be equivalent to one-twelfth (1/12) of the total amount
calculated by the City as the Plant Investment Fee amount otherwise due for said
excess wastewater discharge. The System Lease Charge shall not apply toward
the total of Plant Investment Fees paid by the Districts, and shall be payable
whether or not the City has provided notice to the Districts that wastewater flows
have exceeded the ninety-five percent (95%) threshold described in subparagraph
A, above. Upon payment of additional Plant Investment Fees, the System Lease
Charge shall cease to apply except to wastewater flows in excess of the increased
peak day flow rate for with new Plant Investment Fees have been paid.
D. In the event that the wastewater strength exceeds normal domestic
wastewater strength or deviates from the basis for the Cost of Service Data, then a
Wastewater Surcharge shall be added to the Monthly Service Charge, which
shall be based upon deviations from the strength and composition projections for
the District System that have been used to determine the charges otherwise set
forth herein, and shall be determined by applying applicable wastewater strength
surcharge rates as set forth in Section 26-281 and Section 26-282 of the City
Code.
E. In the event the Districts request or require any services not
included in the Monthly Service Fee, the Districts shall pay to the City
miscellaneous fees and charges based upon the City's costs, time and materials
plus the overhead percentage at the rate provided in the City Code for like
overhead charges by the City's Wastewater System. Such miscellaneous fees and
charges shall be based upon the then applicable method for calculation of
miscellaneous fees and charges as set forth in Section 26-289 of the City Code,
but shall not include the Administrative Surcharge described in Paragraph 6,
below.
F. A Payment In Lieu of Taxes ("PILOT") amount equal to an
additional six percent (6%) of the total of the Monthly Service Charge, System
Lease Charge and Wastewater Surcharge, or such additional or different amount
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• • February 13, 2006
as may otherwise be established as the PILOT rate in Section 26-277(c) of the
City Code.
4. Pretreatment Requirements and Enforcement. The parties acknowledge
and agree that the City's U.S. Environmental Protection Agency-approved Industrial
Pretreatment Program shall apply in full within the District System, and shall be
enforceable by the City throughout said System. The Districts agree to cooperate with
the System in connection with any inspection, investigation, corrective or enforcement
action, or other action required to implement said Industrial Pretreatment Program. In
particular, the Districts agree that as a condition of service to all customers of the
Districts and as a condition of service to the Districts, the City shall be entitled to inspect,
monitor and take or require such corrective action within the District System as may be
necessary for the purpose of implementation or enforcement of said Industrial
Pretreatment Program. As noted in Paragraph 2.C, above, no categorical discharge to the
District System or the City's Wastewater System shall be allowed except in accordance
with the City's requirements for an Industrial Discharge Permit, the terms of which shall
be fully enforceable by the City. The Districts shall notify the City no less than thirty
(30) days in advance of the connection to the District System of any nonresidential
customer or change of use by a new or existing customer that will result in the connection
of a nonresidential use to the District System that has not been expressly reviewed and
approved by the City.
5. Performance Standards for District System. The Districts shall establish
and enforce design and performance standards reasonably satisfactory to the City for all
service lines, collector lines and other components of the District System. Such standards
shall address, but not be limited to, prevention and control of infiltration, inflow,
pretreatment requirements and system reliability, and shall meet generally accepted
engineering standards for public wastewater collection systems.
6. Administrative Surcharges. As a condition of the services to be provided
to the Districts hereunder, the Districts shall no later than January loth and July loth of
each year of this Agreement remit to the City the then applicable City Administrative
Surcharge for each new service connection for which the Districts have issued approval
during the six (6) month period ending at the end of the prior month. The Districts shall
also provide at the time of said payment an accounting of the Administrative Surcharges
collected, including the service address and amount collected for each such address. The
Administrative Surcharge shall be collected pursuant to a schedule of the same to be
provided to the Districts by the City and updated from time to time by the City Manager
pursuant to City Code. The initial Administrative Surcharge represents the estimated
burden upon the City to provide street, library and community parklands expected to
result from the new development to which wastewater service will be provided
hereunder. The initial Administrative Surcharges shall be as set forth in Exhibit C,
attached hereto and incorporated herein by this reference. In no event shall any such
Administrative Surcharge be increased in the future so as to exceed the comparable fee
then imposed by the City upon new development within the limits of the City of Fort
Collins. In the event that the City or any other governmental entity collects for the
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• • February 13, 2006
benefit of the City any e charges
f or other es intended to finance the same capital
improvements otherwise financed by an Administrative Surcharge hereunder, such
Administrative Surcharge shall be waived to the extent necessary to avoid duplication of
the fees or charges.
7. Annual Reporting by Districts. No later than January loth of each year of
this Agreement, the Districts shall provide to the City a complete and accurate list of the
Districts' wastewater customers as of the end of the prior year, including customer name,
service address, billing address and category of customer. The Districts agree to
cooperate with the City and provide such additional information as the City may require
in order to reconcile the records of the City and the Districts, and to confirm the nature,
extent and circumstances of wastewater generated at or discharged from any property
served by the District System or connected to the City Wastewater System. The parties
acknowledge that all or portions of the information provided hereunder may constitute
confidential information pursuant to the Colorado Open Records Act or other applicable
law, and agree that the City shall, as a condition of receipt of such information, protect
the same from public disclosure to the extent required by law.
S. Extension of the District System. The parties acknowledge that the
Districts may choose to extend the District System in order to provide wastewater
services to areas not within the defined boundaries of the Districts as of the date of this
Agreement. Subject to the terms and conditions set forth herein, Fort Collins intends that
such extensions shall be allowed hereunder, provided that the District System is within
the Approved Service Area, or within an additional area for which service has been
expressly authorized or approved by the City Council or other appropriate City official in
accordance with the City Code.
9. Force Majeure. The City shall provide the services as set forth herein,
subject to the general requirements applicable to the Wastewater System by law,
including the Code of the City of Fort Collins, as the same may from time to time be
modified or amended. The City shall not be liable for any failure, default or delay in any
service provided for under this Agreement caused by strikes, acts of God, unavoidable
accidents or contingencies of any nature whatsoever beyond its control.
10. Liability for Costs. Fees and Damages. The Districts shall be liable to the
City for any expense, loss or damage caused to the City by reason of the violation of any
applicable law, permit requirement or condition hereunder, and for any direct or indirect
damages incurred by the City as a result of the discharge of wastewater into the
Wastewater System, including any court costs or other costs of enforcement by the City
of its rights hereunder.
11. Default/Remedies. If any party fails to comply with the provisions of this
Agreement, the other parties, or any of them, after providing written notification to the
noncomplying party and upon the failure of the noncomplying party to achieve
compliance within ninety (90) days, may seek all such remedies as are available under
Colorado law, including but not limited to termination of this Agreement, actual
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• • February 13, 2006
damages, specific performance and injunctive relief, or forfeiture of investment and all
rights of said party to further service by the City's Wastewater System or to discharges
from the District System, as applicable, but excluding any exemplary and/or
consequential damages. In the event litigation is required to enforce this Agreement, the
prevailing party(ies) shall be entitled to payment by the defaulting party of its/their actual
attorneys' fees and costs incurred. Nothing in this Paragraph 11 or any other provision of
this Agreement shall, however, be construed as a waiver of the notice requirements,
defenses, immunities, and limitations any of the Parties may have under the Colorado
Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq., or any other defenses,
immunities, or limitations of liability available by law. The duties and obligations
imposed by this Agreement and the rights and remedies available hereunder to the parties
hereto are in addition to, and are not to be construed in any way as a limitation of, any
rights and remedies available to them which are otherwise imposed by law or regulation,
and the provisions of this paragraph will be as effective as if repeated specifically in the
Agreement in connection with each particular duty, obligation, right, and remedy to
which they apply.
12. System Responsibilities. The Districts shall not be responsible for
operation and maintenance of the City's Wastewater System. Fort Collins shall not be
responsible for the operation and maintenance of the District System. At each point of
connection and division between the District System and the City's Wastewater System,
the City shall own the Metering Station (as set forth in Paragraph 2.13, above). All
collection and treatment improvements downstream of said Metering Station shall be part
of the City's Wastewater System and all collection system improvements upstream of
said Metering Station shall be a part of the District System except as expressly and
specifically agreed by parties in writing. Continuation of wastewater treatment service
by the City shall be contingent upon full payment by the Districts of all amounts due,
including without limitation all plant investment fees, monthly charges for service and
administrative surcharges and compliance by the Districts with all requirements and
conditions set forth herein. The parties acknowledge that this Agreement is intended to
document the conditions and requirements to be met by the Districts in order for the City
to provide wastewater service as described herein, and that this Agreement is not
intended to, and does not, impose upon Fort Collins any obligations to the Districts
except for those obligations that Fort Collins has as a general matter to its wastewater
utility customers.
13. Termination/Transfer. This Agreement shall continue in effect unless and
until terminated: 1) by operation of law; or 2) by the Districts upon the provision of
written notice of termination to Fort Collins no less than one (1) year in advance of the
date of termination; or 3) by mutual agreement of the parties. The parties acknowledge
and agree that the obligations of Fort Collins may be assigned or transferred by Fort
Collins to any successor-in-interest capable of providing wastewater treatment services
consistent with the terms of the Agreement and all applicable laws. In no event shall the
Districts be entitled to a refund of Plant Investment Fees or other fees or charges paid to
the City hereunder.
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• • February 13, 2006
14. Applicable Law. The laws of the State of Colorado and rules and
regulations issued pursuant thereto will be applied in the interpretation, execution and
enforcement of this Agreement. Any provision of this Agreement, whether or not
incorporated herein by reference, which provides for arbitration by an extra-judicial body
or person or which is otherwise in conflict with said laws, rules and regulations will be
considered null and void. In addition, the parties hereto recognize that there are legal
constraints imposed upon them by the constitution, statutes, and rules and regulations of
the State of Colorado and of the United States, and imposed upon them by their
respective governing statutes, charters, ordinances, rules and regulations, and that, subject
to such constraints, the parties intend to carry out the terms and conditions of this
Contract. Notwithstanding any other provision of this Agreement to the contrary, in no
event shall either of the parties exercise any power or take any action which shall be
prohibited by applicable law. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner so as to be effective and valid under applicable law.
15. Notice. Any notice, request, demand, consent or approval, or other
communication required or permitted hereunder will be in writing and will be deemed to
have been given when personally delivered or deposited in the United States mail with
proper postage and address as follows:
Districts: District Manager
The Grove Metropolitan District Nos. 1, 2 and 3
Pinnacle Consulting Group, Inc.
5110 Granite Street, Suite C
Loveland, CO 80538
With copy: David S. O'Leary, Esq.
White Bear & Ankele Professional Corporation
1805 Shea Center Drive, Ste. 100
Highlands Ranch, CO 80129
The Enterprise or
City: Utilities General Manager
City of Fort Collins
P.O. Box 580
700 Wood Street
Fort Collins, CO 80522-0580
16. Complete Agreement. This Agreement, including all exhibits, supersedes
any and all prior written or oral agreements and there are no covenants, conditions, or
agreements between the parties except as set forth herein. No prior or contemporaneous
addition, deletion, or other amendment hereto will have any force or affect whatsoever
unless embodied herein in writing.
17. No Third Party Beneficiary. The terms and conditions of this Agreement,
and all rights of action relating thereto, are strictly reserved to the parties, and nothing in
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• • February 13, 2006
this Agreement shall give or allow any claim or right or cause of action whatsoever by
any other person not included in this Agreement. Any person and/or entity, other than
the parties, receiving services or benefits under this Agreement shall be deemed an
incidental beneficiary only.
18. No Improper Acts. The signatories aver that to their knowledge, no
officer or employee of their respective entities has taken any action in connection with
the negotiation or approval of this Agreement that constitutes a violation of Colorado
law, including but not limited to the abuse of fiduciary duty to the people of the State of
Colorado, failure to properly disclose any conflict of interest in the service or property
described herein, or failure to comply with the requirements of Section 24-18-109 and
Section 32-1-902 of the Colorado Revised Statutes, as they may from time to time be
amended or renumbered.
19. No Waiver. The waiver or delay of enforcement of one or more terms of
this Agreement shall not constitute a waiver of the remaining terms. The waiver or delay
in enforcement regarding any breach of this Agreement shall not constitute a waiver of
any terms of the Agreement.
20. Relationship of Parties. This Agreement does not create and shall not be
construed as creating a relationship of joint ventures, partners, or employer-employee,
between the Parties. The Parties intend that this Agreement be interpreted as creating an
independent contractor relationship. Pursuant to that intent, it is agreed that the conduct
and control of the duties required by the Agreement shall lie solely with each Party
respectively, and each Party shall be free to exercise reasonable discretion in the
performance of its individual duties under this Agreement. Neither Party shall, with
respect to any activity, be considered an agent or employee of the other Party.
21. Modification of Agreement. This Agreement may be modified, amended,
changed or terminated, except as otherwise provided herein, in whole or in part, only by
an agreement in writing duly authorized and executed by both Parties. No consent of any
third party shall be required for the negotiation and execution of any such agreement.
22. Assi rig i� gent. No transfer or assignment of this Agreement or of any rights
hereunder shall be made by either Party without the prior written consent of the other,which
consent shall not be unreasonably withheld.
23. Severability. In the event any court of competent jurisdiction shall hold
any provision of this Agreement invalid or unenforceable, such holding shall not invalidate
or render unenforceable any other provision hereof.
24. Venue For Enforcement Actions. In the event of a dispute between the
parties which results in litigation, the exclusive venue for such action shall be the District
Court in and for the County of Larimer, State of Colorado.
Page 10 of 12
• • February 13, 2006
25. Instruments of Further Assurance. The Parties each covenant that they will
do, execute, acknowledge, and deliver or cause to be done, executed, acknowledged, and
delivered, such acts, instruments, and transfers as may be reasonably required for the
performance of their obligations hereunder.
26. Binding Agreement. The terms, provisions and covenants of this
agreement shall be binding upon the parties hereto, their successors and assigns.
27. Financial Obligations/Future Fiscal Years. This Agreement is not
intended to create or constitute a debt or indebtedness, whether direct or indirect, of the
City or the Enterprise within the meaning of any constitutional, charter or statutory
provision or limitation. Obligations of Fort Collins payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted, and otherwise
made available.
IN WITNESS WHEREOF, the said City has caused this agreement to be executed
by its Mayor, attested to by its City Clerk with the corporate seal of said City hereunto
affixed, and the said Districts have caused this agreement to be executed by their
presidents, as of the day and year first above written, IN DUPLICATE.
CITY OF FORT COLLINS WATER
UTILITY ENTERPRISE
An Enterer' f the City
By: I
of: FORT Enterprr resident
TTEST- C`
t � •Z
Enterprise Secretar
COS ••.......•.
E CITY OF FORT COLLINS
ORADO A MunicipaKorporation
B •
Mayor
ATTEST: p FOP?). PROVED AS TOFORM:
City Clerk t �A Assistant City Attorpe
i
O�ORADO • '
Page 11 of 12
• • February 13, 2006
THE GROVE METROPOLITAN
DISTRICT NO. 1`
B
Y�
resident
ATTEST
m
By
e retary
THE GROVE METROPOLITAN
DISTRICT NO. 2
By:
rdent
ATTEST:
B
ecretary
THE GROVE METROPOLITAN
DISTRICT NO. 3
By: fZsident
ATTES
Q
B :
Secretary
Page 12 of 12
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EXHIBIT C
Schedule of Fees Chafes & Surcharges
(as of February 7, 2006)
Wastewater Plant Investment Fee $6.00 per gallon per day of capacity one-time
payment for each gallon per day of capacity)
Monthly Service Charge $280 plus $1.362 per 1000 gallons
System Lease Charge One-twelfth (1/12) of the plant investment fee due
on the portion of the peak day flow rate which
exceeds the flow rate for which plant investment fee
have been paid
Wastewater Surcharge As set forth in Section 26-281 and Section 26-282
of the City Code
Miscellaneous Fees and Charges As set forth in Section 26-289 of the City Code
Payment in Lieu of Taxes An additional six percent (6%) of the total of the
Monthly Service Charge, System Lease Charge and
Wastewater Surcharge
Administrative Surcharges:
Per Single Per Multi
Family Dwelling Family
Unit Dwelling Unit Commercial
Community Parks $669 $435 n/a
Library $508 $376 n/a
Street Oversizin $649 $448 See Below
Total $1,826 $1,259 n/a
Street Oversizing for Commercial
Industrial $0.46 per square foot of building
Office $0.77 per square foot of building
Commercial $0.96 per square foot of building
Retail Commercial $1.61 per square foot of building